I have been asked to designate a lead agency to conduct an environmental review under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State Environmental Conservation Law [ECL], with implementing regulations at Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 617]. The review is for a proposed 150-foot wireless telecommunications tower (communications tower) and associated equipment to be constructed on land owned by the Pine Island Fire District (Fire District), Town of Warwick, Orange County; the communications tower is a joint proposal by the Fire District and AT&T. The disputing agencies are the Fire District, through its Board of Fire Commissioners, and the Town of Warwick Planning Board (Planning Board). This designation of the Planning Board to serve as lead agency is based on my finding that the Planning Board has the broadest governmental powers to investigate the impacts of the proposed communications tower and capability to provide the most thorough environmental assessment.

ACTION AND SITE

The project would be constructed as a monopole with antennas, and built within an 858 square foot fenced compound. It would replace an existing 70 foot tower in the same location. Once constructed, the tower will serve the Fire District. The Fire District would relocate its existing antennas to the tower at approximately the same height (of 70 feet) where they are located on the existing tower. The new tower would also serve potential future federal public safety antennas and the needs of AT&T and other FCC licensed wireless carriers.

REGULATORY SETTING

Based on information provided to this office, the following agencies were identified as having one or more discretionary decisions that could affect one or more components of the proposed action:

The Fire District is a co-sponsor for this project and owner of the land where the replacement tower is proposed to be constructed.

The Planning Board has asserted land use jurisdiction under the Town of Warwick's Wireless Telecommunications law (Article VIII of the Town of Warwick Zoning Law); through Article VIII, the Planning Board asserts that construction of the telecommunications tower requires site plan review and a special use permit.

Additionally, the Planning Board points out that the proposed site is in an area classified "Local Hamlet Business (LB) District" under the Town of Warwick's zoning law where the telecommunications tower is prohibited unless the provider or applicant can demonstrate that adequate coverage cannot be provided by locating such facilities in zoning districts where the use is specially permitted. The Town of Warwick zoning Law otherwise permits new telecommunication towers within most of its zoning districts, subject to specific siting, camouflage and height requirements.

The Fire District and Planning Board are the only agencies involved in this lead agency dispute. The process by which the dispute arose is not straight forward because it involves issues of governmental immunity from zoning - which are outside of my authority to decide. By letter dated October 22, 2013, the Fire District advised the Planning Board that it intended to assume the role of lead agency for the SEQR review of the proposed telecommunications tower. In response to that letter, the Planning Board neither objected nor agreed to the Fire District serving as lead agency. Instead, the Planning Board asked the Fire District to first assess whether it should be immune from zoning using the "balancing of interests test" originally set forth in the New York Court of Appeals decision in Matter of County of Monroe v. City of Rochester, 72 N.Y.2d 338 (1988).1 By resolution dated August 21, 2014, the Fire District declared itself lead agency noting that the Planning Board had failed to provide it with a definitive response to its October 22, 2013 coordination letter. By letter dated September 17, 2014, the Planning Board initiated this lead agency dispute before the Commissioner. On September 30, 2014, the Fire District passed a resolution in which it concluded that it should be immune from zoning regulations and permitting requirements based on the County of Monroe balancing test. The resolution was shared with the Town of Warwick Planning Board by letter dated October 6, 2014. By letter date November 5, 2014, the Planning Board informed the DEC that it intended to continue the dispute and did not agree with the Fire District's resolution.

I have elected to act on this dispute because I have no authority to decide the matter of governmental immunity and accordingly the lawfulness of the Fire District's resolution in favor of governmental immunity. The latter is a question for the parties to decide among themselves or the courts to determine in a separate proceeding.

DISCUSSION

In resolving a lead agency dispute, under 6 NYCRR §617.6 (b)(5)g (v), I am guided by the three criteria listed in order of importance as follows:

whether the anticipated impacts of the action being considered are primarily of statewide, regional, or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency);

which agency has the broadest governmental powers to investigate the impacts of the proposed action; and

which agency has the greatest capability to provide the most thorough environmental assessment of the proposed action.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

A. FIRST CRITERION

The first criterion does not weigh in favor of either the Planning Board or the Fire District. Both the Planning Board and the Fire District are local agencies and the impacts of the telecommunications tower, which appear to be visual or aesthetic, are most likely local only.

B. SECOND CRITERION

The second criterion favors the Planning Board. Through its jurisdiction of the proposed communications tower under Article VIII of the Town of Warwick Zoning Law, the Planning Board has site plan review powers.2 Additionally, under Article VIII, the Planning Board has special use permit3 review jurisdiction. Utilizing its site plan review and special use permit review jurisdictions, the Planning Board can consider the impact areas usually associated with new communications towers including camouflage, lighting, equipment shelters, and visual issues.

In past Commissioner lead agency disputes, the Commissioner has favored the disputing agency that is also the project sponsor. The rationale for doing so is that the project sponsor/involved agency would ordinarily have complete control over the design, construction oversight and funding of the action and therefore a full range of authority to investigate and address environmental impacts of the proposed action. Here the Fire District is the co-sponsor of this project with AT&T as the other co-sponsor of the project. The fact that the Fire District is a co-sponsor with a commercial enterprise removes any basis to conclude that the Fire District would have a full range of authority to investigate and address environmental impacts of the proposed action. In view of the foregoing and taking into account the Planning Board's broad land use jurisdictions, the second criterion favors the Planning Board.

C. THIRD CRITERION

The Planning Board also has the greatest capability for providing the most thorough environmental assessment for similar reasons that it has the broadest governmental powers to investigate impacts. The impacts that would be of special concern in constructing a new telecommunications tower - e.g., visual related impacts - are the types of impacts that planning boards are typically experienced in assessing. Here, under section 164-80 of the Town of Warwick Zoning Law, the Town of Warwick Town Board has delegated the site plan review and special use review of wireless telecommunications towers to the Planning Board. As mentioned above, this jurisdiction includes authority to review the typical suite of impacts of associated with the construction of new telecommunications towers such as siting, visual and safety issues.

The Fire District, on the other hand, does not have these powers. Fire Districts are special purpose units of government and the evaluation of visual impacts is not among the types of impacts that they have any special competence to evaluate as compared to planning boards with site plan review jurisdiction.

While the Fire District can hire consultants to assist it in a SEQR review and has done so, the Planning Board is by local law specifically entrusted with site plan evaluations for telecommunications towers.

FINDING

Given the broader authority of the Planning Board over that of the Fire District to investigate potential impacts from the construction of the telecommunications tower, and the Planning Board's greater capability for providing the most thorough environmental assessment, I conclude that the Planning Board should be lead agency for the SEQR review of the proposed Pine Island Fire District wireless telecommunications tower.

This does not discount the work already undertaken by the Pine Island Fire District to assess impacts. The Pine Island Fire District had commenced its own review of the environmental impacts of the proposed replacement tower, as previously mentioned, which the Planning Board should utilize - to avoid duplication and to speed its own processes - in completing the environmental assessment form and making its determination of significance.

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1 The Court in Nanuet Fire Engine Co. No. 1 v. Amster, 177 Misc. 2d 296 (Sup. Ct. Rockland Co. 1998), explained the "balancing of interests test" as follows: "Historically, New York has recognized that certain entities are entitled to absolute immunity from zoning regulation [citations omitted]. Other governmental entities are afforded only a limited immunity and are subject to the balancing of public interests test established in the County of Monroe case [citations omitted]. In abolishing a prior distinction between governmental and proprietary functions, the Court of Appeals adopted the balancing of public interests test first applied in Rutgers, State Univ. v Piluso (60 NJ 142, 286 A2d 697). In developing the "balancing test", the Rutgers case acknowledges that even if a governmental division is immune from zoning regulation, such immunity 'was not to be exercised in an unreasonable fashion, so as to arbitrarily override all important legitimate local interests.'" Id. at 299-300.2 Site plan review is the power to review the arrangement, layout and design of a proposed use on a single parcel of land. See Town Law §274-a.3 Special use permits enable a use of land that is in harmony with municipal planning objectives, but that might not otherwise be in harmony with the neighborhood or district, achieve such harmony through conditions of the permit. See Town Law §274-b.